MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:           19 November 1998                   
	DOCKET NUMBER:   AC98-11272

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his discharge under other than honorable conditions be upgraded to fully honorable.

APPLICANT STATES:  That he chose separation from the Army in lieu of trial by court-martial in the best interest of the military and himself.  He states that his command was unaware that he had a drinking problem.  He states that his drinking problems continued after his discharge and his participation in an altercation resulted in the loss of vision in both eyes.  He states that he is now sober, has earned a bachelor of arts degree , and plans to pursue a masters degree in rehabilitative counseling.  The applicant submits letters of support attesting to his post-service achievements.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered the Army on 21 June 1977.  He was discharged from the Army on 28 December 1979 and immediately reenlisted on 29 December 1979 for a period 4 years.  He was awarded military occupational specialty O5C (Radio Teletype Operator).  His highest rank attained was specialist four (E-4).

While assigned to Fort Lewis, Washington the applicant received nonjudicial punishment for disobeying a lawful order.  He completed his tour at Fort Lewis and was assigned to Italy.

He received nonjudicial punishment for being disrespectful in language towards a commissioned officer and being derelict in the performance of his duties.

The applicant was notified on 17 July 1980 of the charges preferred against him for sleeping on guard duty, for stealing 4 cartons of cigarettes, and for breaking restriction.  After consulting with counsel he voluntarily submitted a request to be discharged for the good of the service in lieu of trial by court-martial.

The request for discharge was approved by the appropriate authority and on 
18 August 1980 the applicant was discharged from the Army under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He had served 
3 years, 1 month, and 28 days of total active service. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after court-martial charges have been preferred.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

2.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

3.  The Board found no evidence in the record or the evidence submitted with the application that alcohol impaired his ability to serve in the Army.

4.  The Board determined that the applicant’s good post-service achievements do not serve as a basis to upgrade of his characterization of service.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

Analyst submitted MOC to deny upgrade. One member of panel of the board voted to "grant"  Two members voted to grant General Discharge.  Mr. Schneider approved general discharge.

S:  25 March 1999

SFMR-RBR                                                                                           20 January 1999

MEMORANDUM FOR US ARMY REVIEW BOARDS AGENCY
                           SUPPORT DIVISION - ST. LOUIS, ATTN:  SFMR-RBR-SL,
                           9700 PAGE AVENUE, ST. LOUIS, MISSOURI 63132-5200

SUBJECT;  Application for Correction of Military Records - 

1.  Notwithstanding the determination portion of the enclosed Memorandum of Consideration, the majority of the panel of the Army Board for Correction of Military Records considering the case of the above-named individual voted to grant partial relief.  After considering all the facts and circumstances, the majority was of the opinion that the discharge of the individual concerned should be upgraded to general, under honorable conditions.  A fully honorable discharge, as requested by the applicant, was not deemed appropriate considering his acts of misconduct.  I concur with the majority.  

2.  Accordingly, under the provisions of Title 10, United States Code, section 1552, it is directed that all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the Army with a general, under honorable conditions, discharge on 18 August 1980 and that he be issued corrected or new separation documents.    

3.  Request necessary administrative action be taken to effect the correction of records indicated above no later than 25 March 1999.  Further, request that the individual concerned and counsel, if any, as well as any members of Congress who have shown interest be advised of the correction and that the Board for Correction of Military Records be furnished a copy of the correspondence.  

BY ORDER OF THE SECRETARY OF THE ARMY:  

Karl F. Schneider
Deputy Assistant Secretary
(Army Review Boards) 

SFMR/RBR
APPLICANT
DFAS